In the wake of the Covid-19 Pandemic one of the many directions of the BC Supreme Court was that jury trials could not proceed for the time being creating a balancing of interests between trials proceeding in a timely fashion vs the right of a party to have their preferred mode of trial.
Today reasons for judgement were pronounced considering this direction and ultimately striking a civil jury desired by a Defendant in a personal injury claim.
In today’s case (Cheung v. Dhaliwal) the Plaintiff was injured in a 2016 collision. The claim was set for trial on June 22, 2020. Both liability and quantum were at issue. The Defendant desired trial by jury which would have resulted in an adjournment. The plaintiff brought an application to strike the jury notice so it could proceed on the date set. In finding the prejudice to the Plaintiff in adjournment outweighed the prejudice to the Defendant by having a judge alone trial Master Vos provided the following reasons:
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, confirming that failure to pay jury fees nullifies jury notice even when a trial is adjourned.
In today’s case (Blaikie v. Penafiel) the Plaintiff was injured in a collision and sued for damages. The Defendant filed a jury notice but did not pay the fees in the required time frame prior to the initial trial being adjourned by consent. The Defendant sought to rely on the jury notice in the subsequent trial and the Plaintiff objected. The Court found that the initial failure to pay the fees nullified the jury notice. In reaching this conclusion the Court provided the following reasons:  The basic facts are that the plaintiff was injured in a motor vehicle accident on March 15, 2008. Liability has been admitted by the defendants. The trial was first set to proceed on December 2, 2013, and jury notices were filed by both the plaintiff and the defendants. On October 18, 2013, jury fees were due and payable. Neither the plaintiff nor the defendants paid the jury fees. On November 22, 2013 the defendants applied to adjourn the trial, and it was ultimately adjourned by consent and rescheduled to September 29, 2014. On January 3, 2014, the defendants purported to file a new jury notice.  It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.  I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded: In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.  The respondent here says that in fact the jury fees will be paid. They will be paid in advance of the new trial date, as provided for under the Rules.  The defendants relied upon the decision of the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co.,  2 S.C.R. 490. In my view that decision is completely inapplicable to a right that is extinguished in accordance with the time limits set out in the Rules. In my view, their voluntary relinquishment of the right to a jury was not and cannot be bound by the law of waiver.  In the circumstances, it is my view that, having failed to pay the jury fees in a timely fashion, the defendant is restrained from filing a new jury notice or paying the fees now.  I am confirmed in that view by the decision in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para. 21: The learned judge below was, in my view, quite correct in concluding that the opportunity to issue a new notice of trial, when a trial has been adjourned from the original trial date, cannot automatically carry with it a renewed right to issue a jury notice. …
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether parties to an action joining a matter already set for trial can elect the mode of trial.
In this week’s case (Catalano v. Ogloff) the Plaintiff was injured in two collisions. The Plaintiff started an action for the first collision, set the matter for trial and filed a jury notice. The Defendant did not. A separate action was started for the second collision and all parties filed a consent order providing that the cases be head together on the date already scheduled. The Defendants in the second action then filed a jury notice. The Court found this was a nullity. In striking the Defendant’s jury notice Master MacNaughton provided the following reasons:  For the following reasons, I have concluded that the defendant’s jury notice is a nullity.  First, under Rule 12-6(3) of the Supreme Court Civil Rules it is clear that the election of a jury trial is a two-step process. The right is preserved by serving a jury notice but the matter will not be heard by a jury unless and until the jury fees are paid. A jury trial occurs only if both steps are completed. Thus, the defendant to the second action could not presume that the first action was proceeding to a jury trial. It is for that reason that all parties to an action independently preserve their election of a jury trial by serving their own jury notice.  Second, the early cases which established the principal that it is only the first notice of trial which matters, with respect to the election of a jury, arose in the context of trial adjournments. However, that principal has been expanded. I agree with the conclusion of Master Groves (as he then was) in Bumen v. BC Transit, 2001 BCSC 443: … when a notice of trial has previously been given in one action, without a jury notice being filed, a subsequent consent by the parties to having other actions tried at the same time ought to be treated as an election to have a trial by judge alone in all the actions. In other words, when parties consent to the consolidation of multiple actions they are bound by the mode of trial specified in the notice of trial filed with respect to the first action. …(para. 20) Master Groves’ reasoning mirrors that of Master Barber in Wright v. Rose (1995), 32 C.P.C. (3d) 319 where he said: …there is no valid jury notice issued in the first action…it could be argued that the jury notice is valid for the second and third action. Of course, when actions are tried at the same time they should either be all heard with a jury, or herd by a judge alone. In my opinion, when the defendants consented…to all three actions being tried at the same time, that was an election to have trial by judge alone. … (para 17)  In my view, the fact that the plaintiff had delivered a jury notice in the first action does not change the result. The defendant in the second action could not rely on the plaintiff’s jury notice as that was merely the first stage of the election process and did not guarantee a jury trial (I note that it has since been withdrawn). The defendants to the first action had not delivered such a notice. To ensure his right to a jury trial, the defendant in the second action should have made it a term of his consent to having the matters tried together or, if no consent was forthcoming, he could have delivered a jury notice and then applied in chambers to have the matters heard together with a jury.  By proceeding the way he did, the defendant to the second action was not at liberty to deliver the jury notice. It is a nullity.
Unreported reasons for judgement recently came to my attention addressing, for what I believe is the first time since the New Rules came into force, the issue of whether a party can elect trial by jury when a new Notice of Trial is issued if they failed to so elect in the fist instance. In short the Court held this is not permitted.
In the recent case (Hung v. Sellars, BC Supreme Court Duncan Registry) the Plaintiff was injured in a motor vehicle collision. The case was set for trial and neither party filed a notice requiring trial by jury. The trial was adjourned by consent. The Plaintiff filed a new notice of trial (as is required by BC Supreme Court Practice Direction 25). The Defendant then filed a notice requiring trial by jury.
The Plaintiff brought an application to strike the Jury Notice. Mr. Justice Bracken granted the application noting that the Rules only allow a jury notice to by filed with the initial notice of trial. In doing so the Court provided the following reasons:  As noted, the authorities have held the election whether the trial be by judge alone or by judge sitting with a jury contemplates that the election will be made promptly after the first notice of trial. Some latitude is possible where a party seeks to make an election outside the tie limited by the rules in certain restricted circumstances.  In some cases, such as removal from the fast track process where there is no right of jury trial, the parties can make the eelction upon a new notice of tiral being filed…  In this case, a jury notice, in accordance with the principle in Hoare v. Firestone and Pelech v. Pelech, could have been filed and served after the first notice of trial that was issued in this action. The jury notice should have been filed and delivered within the rules after the date of the first notice of trial…Therefore the notice requiring trial by jury in this case…is struck as being filed outside the tine allowed by Rule 12-6. As of today’s date this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
Did you know that either side to an ICBC claim in BC Supeme Court can elect trial by Jury (unless of course the claim is being prosecuted under Rule 66 or 68).
One of the practical effects of trial by Jury is that it makes claims longer and more expensive. I won’t get into all the reasons of why this is at this time but it is generally true.
ICBC often sets claims for jury trials when they involve Low Velocity Impacts or involve injuries with little objective verification.
What if you don’t want a trial by Jury? Can you do anything about it? The answer is sometimes.
Rule 39(27) of the BC Supreme Court rules deals with when a court may refuse a jury trial. One of the main challenges to trial by Jury is that the claims is to complex for the jury to deal with.
Such an applicaiton was brought recently and rejected by Master Tokarek who released written reasons for his decision today.
In this case the Plaintiff sued for various injuries sustained in a series of 4 accidents. In this case there was a significant amount of medical evidence that the Jury would have to deal with. The Plaintiff tried to get rid of ICBC’s jury notice arguing that “in light of all of the available reports, this matter is too complex and intricate for a jury to deal with“.
The court rejected this argument finding that My impression, upon reading those reports, is that although there are a great many reports to deal with, they do not strike me as being overly complex or difficult. In fact, one or more of the reports, the exact numbers of which I neglect to make a note of so I cannot refer specifically to them in these reasons, but nevertheless one or more of these reports struck me as being very impressive in the way in which the author laid out in layman’s terms some of the definitions and explanations of what the symptoms and injuries were all about……There is in British Columbia, as plaintiff’s counsel candidly admitted, a very strong right to a party to choose a trial by jury, subject to the restrictions imposed by legislation, and therefore the onus does fall to the plaintiff to make its case that the defendant ought not to have its right to a jury trial. As I have said, I believe that the plaintiff has fallen short of satisfying that onus in this particular case.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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